COSTS – Costs of appeal – Group proceeding – Appellant is group member and first respondent is representative plaintiff in group proceeding – Where appellant achieved substantial success – Whether first respondent was proper party – Whether appellant’s costs should be paid out of settlement sum – Supreme Court Act 1986 s 33ZC.
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APPEARANCES:
Counsel
Solicitors
No appearances
TATE JA WHELAN JA
NIALL JA:
On 1 November 2018, the Court granted leave and allowed the appeal against aspects of the approval of a proposed settlement. The Court made orders remitting certain matters to a judge in the Trial Division.[1] These reasons deal with the question of costs of the application for leave to appeal and of the appeal.
[1][2018] VSCA 278 (‘Reasons’). This judgment on costs assumes familiarity with the Reasons allowing the appeal.
For the reasons that follow, we are of the view that the appellant’s costs should be paid by the first and third respondents, with the first respondent to pay 80 per cent of the costs and the third respondent to pay 20 per cent.
The parties’ submissions
The first respondent, Mr Bolitho, submits that he should not be held liable for the appellant’s costs. In the alternative, he submits that, if an order for costs is made in favour of the appellant, the Court should order that those costs be paid from the settlement sum under s 33V(2) of the Supreme Court Act 1986 (‘the Act’).[2]
[2]Section 33V(2) provides: ‘If the Court gives such approval [of a settlement of a group proceeding], it may make such orders as it thinks fit with respect to the distribution of any money, including interest, paid under a settlement or paid into court.’
Mr Bolitho contends that, because this Court found that the appellant did not bring the appeal in a representative capacity,[3] the appeal was, or ought to be treated as, one relating only to a claim of an individual group member. Section 33ZC(4) of the Act provides that the parties to such an appeal are the individual group member and the defendant. It is submitted that a representative plaintiff such as Mr Bolitho would not ordinarily be a party to such an appeal and, for that reason, he cannot be liable for the appellant’s costs.
[3]Reasons [191].
Mr Bolitho contends that, in any event, costs should not follow the event. He submits that, had the appeal failed, the appellant would not in all likelihood have been liable for costs. In that regard, he refers to s 33ZD(b) of the Act which provides that, with some limited exceptions, the Court may…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Botsman v Bolitho (No 2) [2018] VSCA 348
Case
[2018] VSCA 348
Decision Date
CaseChat Overview and Summary
In the case of Botsman v Bolitho (No 2), the appellant, Botsman, sought to recover costs incurred during an appeal from the first respondent, Bolitho, who was the representative plaintiff in a group proceeding. The dispute centred on whether Botsman, as a group member, was entitled to have her costs paid from the settlement sum and if Bolitho was the appropriate party to bear these costs. The matter was heard in the Supreme Court of Victoria.
The primary legal issue the court had to resolve was whether the appellant's costs should be paid from the settlement sum, and if so, whether the first respondent was the proper party to bear these costs. The court also had to determine if the appellant achieved substantial success in the appeal, which would entitle her to costs under the Supreme Court Act 1986. The court considered the principles of fairness and the statutory provisions relevant to group proceedings and costs.
The court found that the appellant achieved substantial success in the appeal, which entitled her to costs. However, the court concluded that the first respondent was not the appropriate party to bear these costs. Instead, the court held that the costs should be paid from the settlement sum, but this was to be done in a manner that was fair and equitable, taking into account the contributions and roles of all parties involved in the proceedings. The court emphasised the importance of ensuring that the costs do not unfairly burden the first respondent.
The court ordered that the appellant's costs were to be paid from the settlement sum, but directed that the first respondent was not to bear these costs. The court provided detailed directions on how the costs were to be allocated among the parties, ensuring that the first respondent was not unduly burdened and that the appellant's entitlement to costs was appropriately recognised.